16 June 20
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16 June 20
FOCUS: Supreme Court's Landmark LGBTQ Employment Decision Is Even Bigger Than Marriage Equality
David S. Cohen, Rolling Stone
Cohen writes: "Even in the middle of a resurging pandemic, it's important to remember that good things still exist. Today, the Supreme Court gave us that reminder in the form of a 6-3 decision that LGBTQ people are protected against employment discrimination."
David S. Cohen, Rolling Stone
Cohen writes: "Even in the middle of a resurging pandemic, it's important to remember that good things still exist. Today, the Supreme Court gave us that reminder in the form of a 6-3 decision that LGBTQ people are protected against employment discrimination."
EXCERPT:
To get colloquial for a second here — this is huge. When the Supreme Court ruled in 2015 that states could not ban same-sex marriage, it was a momentous step for equality. However, that ruling only applied to those gay and lesbian people who wanted to marry. For countless reasons, many LGBTQ folks will not want to marry over the course of their lives, so the 2015 decision, while symbolically important to all LGBTQ people, was only practically relevant to a subset.
Not today’s decision. Why? Because virtually every LGBTQ person will work over the course of their lifetime. And after today, every one of those people will work knowing that they are protected under federal law against being treated differently because of their sexual orientation or gender identity. Today’s decision is an unequivocal GOOD THING because it is a sea change for equality.
The ruling today was a combined ruling in three cases — two about discrimination against gay people and one about discrimination against a transgender person. Justice Neil Gorsuch, President Trump’s first appointee to the Supreme Court, wrote the opinion that covered all three cases. Chief Justice John Roberts and the Court’s four liberals joined Justice Gorsuch in the opinion.
The central dispute in the cases is over whether the term “sex” in Title VII (the federal anti-discrimination law that applies to workforces of 15 people or more) includes sexual orientation and gender identity. The law doesn’t mention “sexual orientation” or “gender identity” at all, but Justice Gorsuch said that doesn’t matter. He concluded that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
He then reasoned very simply to explain his conclusion. I don’t normally like big long quotes like this, but his explanation is very straightforward and instructive, so it’s worth reading:
“Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.”
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